FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION & ARBITRATION

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Q: What is Mediation?

A: Mediation is the process by which an alternative dispute resolution professional, called a mediator helps the parties reach a resolution of their dispute. It is a non-binding process involving joint and separate meetings of the neutral with the parties in which the role of the neutral is as a facilitator and intermediary. The mediation process is helpful as it educates the parties as to the perceived strengths and weaknesses of their case. The mediation process also serves as a forum for airing emotional differences that may stand in the way of resolving conflict, and thus, may help facilitate a settlement that both sides can be satisfied with much earlier in the adversarial process than could otherwise be reasonably expected.

Q: Who serves as a mediator?

A: A mediator is an impartial person who is selected by either the parties to help them attempt to resolve their conflict.

Q: What type of disputes can be submitted to mediation?

A: Almost any type of dispute can benefit by mediation, including contract disputes, corporate disputes, claims for injuries, domain name disputes, trademark disputes, and civil right issues. By helping to facilitate early resolution of disputes, the mediation process can save you time and money. Because different states have different statute of limitations which may serve to prevent you from filing your claims in court after a certain period of time, it is recommended that you consult with an attorney in your jurisdiction when you first have knowledge that you may have a claim requiring resolution or when you first receive a request to mediation or a demand for mediation so that you may properly and timely present your claims or properly and timely respond to those claims presented by others.

Q: How can I include mediation in my corporate liability limitation plan?

A: You can include mandatory mediation by inserting a mediation clause in your form contracts, construction agreements, articles of incorporation, shareholder agreements, etc. Mediation can be made a mandatory, pre-arbitration requirement, with arbitration being used as a last resort or may be required as part of the process of initiating and filing civil litigation.

Q: If there is no mandatory mediation clause in my contract documents covering a current dispute or if my dispute is based on an injury and is not contract related, can I still have my conflict mediated?

A. Yes; if both the parties agree to mediate.

Q: If my contract includes a mandatory mediation clause, how do I begin the mediation process?

A: If your contract designates mediation, then the first step is to contact an attorney in your jurisdiction when you first have knowledge that you may have a claim requiring mediation or when you first receive a request to mediation or a demand for mediation so that you may properly and timely present your claims or properly and timely respond to those claims presented by others.

Q: What do I do if I am served with a demand for mediation?

A: If you are served with a demand for mediation then it is recommended that you consult with an attorney in your jurisdiction when you first have knowledge that you may have a claim requiring mediation or when you first receive a request to mediation or a demand for mediation so that you may properly and timely present your claims or properly and timely respond to those claims presented by others.

Q. What is arbitration?

A. Arbitration is a final, and binding resolution of a dispute by a person called an "arbitrator", or a panel of three or more "neutrals". The courts of the majority of jurisdictions uphold the binding nature of an arbitrator's judgment to the same extent that they up hold a ruling by a judge.

Q. What types of disputes can be arbitrate?

A. Nearly any type of dispute can be arbitrated. This includes contractual disputes, shareholder disputes, claims rising from injuries caused by automobile accidents, domain name disputes, tort and civil rights cases, etc..

Q: Who serves as a neutral or arbitrator?

A: A Neutral is an impartial person who is selected by either the parties to resolve their conflict. A Neutral Arbitrator is an impartial person assigned to hear and decide a case. The Neutral Arbitrator takes the place of the judge and jury by performing the tasks usually assigned to them, IE: hearing the facts, applying the law and making an award. In most cases the neutral is a lawyer and/or a person having expertise in the subject matter that is in dispute. Depending on the type of case, come jurisdictions have minimal qualifications or criteria that must be met by those acting as arbitrators in that area.

Q. How is the neutral selected?

A. There are many different ways to select a neutral. First, the parties can agree upon the person they want to act as the arbitrator of their dispute. Second, the parties may be committed by an arbitration clause in a contract to let the arbitrator of their dispute be selected according to the rules of the alternative dispute resolution (ADR) forum designated in the same clause. These ADR forums typically permit the parties to rate their preference of neutrals from a list of available persons, then one that is the most preferable to both parties, or the least objectionable to both parties, is selected to the parties' arbitrator. Third, the parties can agree to follow some other process for selection of their arbitrator. An example of such voluntary process would be where both sides select a neutral and these neutrals cooperate to select the person who will serve as arbitrator of the parties' dispute.

Q. What is an arbitration award?

A. An arbitration award is a decision of the neutral finding for and/or against a party and is made in writing. In most jurisdictions, the neutral is not required to render a written explanation of his/her decision with the award.

Q. Is the award of the neutral legally enforceable?

A. Yes, the award of the neutral is, with rare exception, legally enforceable in the court of the state or country having jurisdiction over the dispute.

Q. Can I arbitrate a current dispute when there is no contractual arbitration clause?

A. Yes, arbitration of a current dispute may be accomplished by having all parties to the dispute sign an Agreement to Arbitrate. It is recommended that you consult an attorney in your jurisdiction when you first have knowledge that you may have a claim requiring resolution or when you first receive a demand for arbitration so that you may properly respond.

Q. How do I initiate arbitration if my current contract has an arbitration clause?

A. If your current contract has an arbitration clause, but does not name an ADR forum, then, to initiate arbitration, you simply serve a "Demand for Arbitration" on the other side. In order to achieve a viable record of service, it is also recommended that you send a copy of your demand by certified mail. You can also file your demand with an ADR forum, and serve a copy of it on the other side.

Q. Do I need to hire an attorney to represent me during arbitration.

A. While in the majority of states, there is no requirement that either corporations or individuals be represented by an attorney at an arbitration or mediation, different states do have different requirements regarding the timing and content of arbitration demands and responses. There are statute of limitations that may prohibit you from filing for arbitration on a claim after the passing of a certain amount of time, just like they would prohibit the filing of a lawsuit. Similarly, there are time requirements for filing a response to a demand for arbitration that must be met. It is recommended that you consult an attorney in your jurisdiction when you first have knowledge that you may have a claim requiring resolution or when you first receive a demand for arbitration so that you may properly and timely respond.

Q. What is an arbitration claim?

A. An arbitration claim is a statement of injury together with a request for compensation in either an estimated or certain dollar amount, and/or that the other party perform or quit performing some act. A claim is presented by the initiating party in his/her Demand for Arbitration and by the responding party in his/her Response to Demand or by either or both parties in their Agreement to Arbitrate. Because different states do have different requirements regarding the timing and content of arbitration demands and responses and there are statute of limitations that may prohibit you from serving a demand for arbitration after the passing of a certain amount of time, it is recommended that you consult with an attorney in your jurisdiction when you first have knowledge that you may have a claim requiring resolution or when you first receive a demand for arbitration so that you may properly and timely respond.

Q. Who is the responding party?

A. The responding party is the party who responds to a demand for arbitration, by filing a Response to Demand. The responding party may or may not include a claim for compensable injuries with his/her response. This response document may or may not included a claim or counter-claim for compensable injuries. Because different states do have different requirements regarding the timing and content of arbitration responses and counterclaims it is recommended that you consult with an attorney in your jurisdiction when you first receive a demand for arbitration so that you may properly and timely respond to it.


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